Plaintiff June M. Lydon, Trustee of the Lydon Family Trust (the Trust) filed its unverified complaint on April 30, 2009, appealing pursuant to G.L. c. 40A, § 17, a decision of Defendant Town of Milton Board of Appeals (the ZBA), which granted a use variance and a special permit to Defendant Thomas Coulter (Coulter) (together with the ZBA, Defendants) pertaining to property located at 919 Blue Hill Avenue in Milton, Massachusetts (Locus). A case management conference was held on July 1, 2009. At a hearing held on February 19, 2010, this court allowed Defendants Motion to Remand the matter back to the ZBA, and issued its Order for Remand to the Milton Board of Appeals. On April 15, 2010, the ZBA issued its remand decision. On May 3, 2010, Plaintiff filed its First Amended Complaint, appealing the ZBAs remand decision.
Plaintiff filed its Motion for Summary Judgment on May 14, 2010, together with supporting memorandum, Statement of Material Facts, and Appendix including Affidavits of Matthew J. Dunn, Esq. and Frederick Lydon. On June 14, 2010, the ZBA filed its Opposition and Cross-Motion for Summary Judgment, together with supporting memorandum, Statement of Additional Material Facts, and Appendix including Affidavits of William B. Clark, Jr., Frederick G. Barry, Jr., Esq., and Diane Colligan. Coulter filed his support of the ZBAs Cross-Motion on June 16, 2010. Plaintiff filed its Opposition to Cross-Motion and Reply on July 14, 2010. A hearing was held on all motions on August 30, 2010, at which time the matter was taken under advisement.
This court entered a Judgment and issued a Decision on September 27, 2010 (Land Court Decision 1), finding that Plaintiff lacked standing to challenge the decision of the ZBA and dismissed the Complaint. Plaintiff filed a Notice of Appeal from Land Court Decision 1 on October 1, 2010. In a 1:28 decision dated June 29, 2011 (10-P-1950), the Appeals Court found that the evidence suffices to support the plaintiffs claim of standing, reversed this courts judgment of dismissal, and remanded the case to this court for judgment on the merits. See Lyons v. Bd. of Appeals of Milton, 79 Mass. App. Ct. 1127 (2011).
On August 1, 2011, Plaintiff filed its Motion to Renew Motion for Summary Judgment. On August 8, 2011, Defendants filed their Cross-Motion to Renew Their Previously Filed Cross-Motion for Summary Judgment. On August 9, 2011, Plaintiff filed its Motion for Leave to Reply to Defendants Statement of Additional Material Facts. [Note 1] A status conference was held on September 1, 2011, at which the parties agreed to go forward on their motions without a hearing. On September 15, 2011, Plaintiff filed a Response to Defendants Statement of Additional Material Facts, and at that time the matter went under advisement.
By decision dated May 3, 2012, together with a Judgment of the same date (collectively, Land Court Decision 2 ), I found and decided, inter alia, the following: a) Coulter had the right to sell produce, as construed expansively by the Zoning Bylaws of the Town of Milton (the Bylaws), raised both on and off Locus and to operate a florist business on Locus pursuant to a special permit (Special Permit 3) and variance (Variance 1) issued by the ZBA on July 13, 1984 to Coulters predecessors in interest; b) Conditions 1, 4, 5 and 8 of a special permit issued by the ZBA on April 21, 2009 (Special Permit 4) were invalid as they authorized by special permit uses that may be authorized only by variance; c) Conditions 3 and 12 of Special Permit 4 were invalid because they authorized by special permit a use that may be authorized only by variance; d) Condition 11 of Special Permit 4 was invalid because it authorized by special permit a use that may be authorized only by variance; e) the ZBA articulated sufficient findings in its decision to grant Special Permit 4 to the extent that Special Permit 4 allowed the sale of fruits, vegetables, and Christmas Trees not raised on Locus; f) Special Permit 4 was not substantially detrimental to the public good, did not substantially derogate from the Bylaws purpose, and was not detrimental to a residential neighborhood; all only to the extent that it allowed for the sale of fruits, vegetables and Christmas trees not raised on Locus; g) the ZBA did not act arbitrarily, capriciously or unreasonably in granting Special Permit 4 only to the extent that it allowed for the sale of fruits and vegetables raised on Locus and Christmas trees not raised on Locus; h) Conditions 2, 6, 9, 10, and 13 of Special Permit 4 remain valid only to the extent that Special Permit 4 authorized the sale of fruits, vegetables, and Christmas trees not raised on Locus; i) Defendants failed to establish that literal enforcement of the Bylaws would result in a substantial hardship based on the soil conditions, shape, or topography of Locus that do not generally affect the residential zoning district in which Locus is found; and, j) a variance to operate a landscaping business granted by the ZBA on April 15, 2010 (Variance 3) was annulled.
On August 16, 2012, Plaintiff filed a Verified Complaint for Civil Contempt, which is the key dispute in the case-at-bar. In this Complaint, Plaintiff alleged that Coulter, in contravention of Land Court Decision 2's annulment of Variance 3, has continued to operate a landscaping business on Locus without interruption since Land Court Decision 2 was issued by this court. A pre-trial conference was held on November 14, 2012. A site view and an Evidentiary Hearing at the Land Court in Boston were held on December 18, 2012. The parties filed their post-trial briefs on February 25, 2013, and at that time the matter went under advisement. On February 28, 2013, Plaintiff filed a Motion to Supplement the Evidence Presented at the Evidentiary Hearing (the Motion to Supplement), together with Affidavit of Frederick A. Lydon. On March 11, 2013, Coulter filed an Opposition to the Motion to Supplement. A hearing on the Motion to Supplement was held on March 12, 2013, and the matter was taken under advisement.
Testimony at the Evidentiary Hearing was given by Frederick Lydon (Lydon) and Coulter. Seven exhibits, some in multiple counterparts, were submitted into evidence.
Based on the sworn pleadings, the Stipulation of the parties, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:
1. Plaintiff is the record owner of the property known as 175 Atherton Street in Milton, MA (Plaintiff Property). Lydon has a Durable Power of Attorney to act on behalf of Plaintiff. This power gives Lydon the power to, inter alia, pay invoices on behalf of the Trust. Plaintiff Property has been vacant for more than five years, although Lydon visits Plaintiff Property on a daily basis and acts as a de facto property manager of Plaintiff Property.
2. Coulter is the record owner of Locus. Locus and Plaintiff Property abut. Locus has signs on the portion of the property that abuts Blue Hill Avenue which read Coulter Landscaping.
3. Variance 3 permitted Coulter to operate a landscaping business on Locus. Variance 3 was annulled in Land Court Decision 2, which explicitly stated [a] landscaping business may not be operated on Locus because Variance 3 has been annulled.
4. Coulter admits that from May 3, 2012, the date Land Court Decision 2 was issued, through October 10, 2012, he continued to operate a landscaping business on Locus.
5. On May 15, 2012, pursuant to G. L. c. 40A, § 7, Plaintiff filed a request with the Building Commissioner (the Commissioner) of the Town of Milton (the Town) to enforce Land Court Decision 2.
6. By letter dated May 29, 2012, the Commissioner refused to enforce Land Court Decision 2 (Commissioner Decision), as it related to the annulment of Variance 3.
7. On June 4, 2012, Coulter filed an appeal of Land Court Decision 2 (the Appeal). On October 4, 2012, Coulter filed his withdrawal of the Appeal.
8. On June 26, 2012, Plaintiff filed an appeal of the Commissioner Decision with the ZBA. The ZBA held a public hearing on Plaintiffs appeal on July 24, 2012 (the ZBA Hearing). Both Lydon and Coulter appeared and were heard.
9. Lydon argued at the ZBA Hearing that Land Court Decision 2 was an injunction and that the Appeal did not stay the injunction pursuant to Mass. R. Civ. P. 62(d). Because of this, Lydon demanded that the ZBA enforce Land Court Decision 2. Coulter argued that this court issued no injunction and that the Appeal stayed enforcement of Land Court Decision 2 pursuant to Rule 62(d). Plaintiffs counsel, Attorney Matthew Dunn (Dunn), assisted in the preparation and presentation of Plaintiffs position at the ZBA Hearing.
10. On August 22, 2012, the ZBA issued its decision affirming the Commissioner Decision. The ZBA determined that the Land Court Decision is not in the nature of an injunction...[i]n accordance with Rule 62(d)...its execution, or enforcement, was stayed during the pendency of the appeal when Coulter filed an appeal to the Appeals Court.
11. Coulter represented to this court that he continued to operate the landscaping business in reliance upon the determination of the ZBA. In the pre-trial memorandum for the Evidentiary Hearing and a status conference held on October 19, 2012, Coulter also represented to this court that he had ceased operating the landscaping business on Locus as of October 10, 2012.
12. During the period May 3, 2012 to December 18, 2012, Lydon has regularly seen as many as ten trucks, 4-5 trailers, a dumpster, snow plows, a Bobcat, spraying machines, leaf blowers, lawn mowers, and grass cutters on Locus. Several of the trucks have Coulter Landscaping signs on them. For the time period after October 10, 2012, Lydon testified that he continuously saw landscaping trucks coming to and leaving Locus, he saw workers loading and removing landscaping equipment (wheel barrels, mowers, trimmers, etc.) from trailers, and he saw workers returning to Locus at the end of the day with grass clippings, leaves, and tree branches. Lydon further testified that during November 2012 and December 2012, he personally witnessed numerous Coulter Landscaping trucks being stored on Locus and maintenance being performed on landscaping equipment at Locus. Coulter admitted that he continues to store certain landscaping equipment and vehicles on Locus, and that he performs maintenance on the equipment that he stores on Locus. Coulter also admitted that he stores loam and mulch on Locus.
13. On June 30, 2012, two months after Land Court Decision 2, Coulter filed Articles of Organization (the Incorporation) for his landscaping business, listing the address of the principal corporate office as Locus. The stated purpose for engaging in business under Article II of the Incorporation is to engage in the business of operating a general landscaping and lawn maintenance business.
14. Coulter testified that he does all of his record keeping at Locus for both his landscaping and nursery businesses.
15. After the Evidentiary Hearing, Plaintiffs counsel filed the Motion to Supplement the Evidence Presented at the Evidentiary Hearing (the Motion to Supplement), together with Affidavit of Frederick A. Lydon and a number of exhibits. Plaintiffs exhibits attached to the Motion to Supplement included photographs of landscaping equipment and Coulter Landscaping trucks on Locus in February 2013.
The Exhibits also included several invoices to Lydon from Dunns law firm.
16. Among the items listed in the several invoices (submitted as Exhibits at the Evidentiary Hearing and also as appendices to the Motion to Supplement) from Dunn to Lydon are charges for time spent preparing for the ZBA Hearing, preparing a demand to the Commissioner, drafting and filing a complaint challenging the validity of a Town of Miltons Zoning Bylaw Amendment (the Zoning Amendment), [Note 2] time spent drafting letters to the Massachusetts Attorney Generals Office regarding the challenge to the Zoning Amendment, trying the case on December 18, 2012, and preparing Plaintiffs post-trial memorandum.
Plaintiff alleges in its post-trial brief that the evidence presented at the Evidentiary Hearing established that Coulter operated a landscaping business on Locus from May 3, 2012 (the date Land Court Decision 2 was issued) through December 18, 2012 (the date of the Evidentiary Hearing), and claims damages in this regard. Plaintiff further alleges in the Motion to Supplement that Coulters contempt continued post-Evidentiary Hearing into February 2013. Plaintiff seeks to recover its litigation costs, including attorney fees, incurred as a result of Coulters contempt. Coulter acknowledges that he operated a landscaping business on Locus until October 10, 2012, with the understanding that Land Court Decision 2 was stayed by the Appeal. Coulter maintains, however, that he has not operated a landscaping business on Locus since October 10, 2012. With respect to attorneys fees, Coulter argues that Plaintiffs attorney has failed to account for his bills with the specificity and detail required under the law. Coulter further argues that numerous items claimed in Plaintiffs attorneys invoices are unrelated to the contempt proceedings and are therefore not recoverable in this contempt proceeding.
Disposition of the case-at-bar requires consideration of a number of issues. First, I must determine whether or not Land Court Decision 2 operated as an injunction with respect to Coulters landscaping business, and if so, whether or not the Appeal stayed Land Court Decision 2. Second, I must determine the extent of Coulters contempt, if any. Third, I must determine what costs, if any, Plaintiff is entitled to as part of a contempt award. Finally, I must address the Motion to Supplement. I shall address each issue in turn.
I. Land Court Decision 2 Constituted an Injunction
Plaintiff argues that Land Court Decision 2 enjoined Coulter from operating a landscaping business on Locus. Plaintiff argues that, because Land Court Decision 2 constituted an injunction, Mass. R. Civ. P. 62(a) applies and the Order was consequently not stayed by the Appeal. Coulter denies that Land Court Decision 2 constitutes an injunction. Coulter argues that when he filed the Appeal on June 4, 2012, the Order was effectively stayed pursuant to Mass. R. Civ. Pro. 62(d). Coulter also argues that even if Land Court Decision 2 was intended to be an injunction, it is ineffective because it does not state with specificity the acts to be enjoined.
In general, litigants who appeal a final judgment after it is issued stay its execution for the duration of the appeal. Except as otherwise provided in these rules, the taking of an appeal from a judgment shall stay execution upon the judgment during the pendency of the appeal. Mass. R. Civ. P. 62(d). This general rule does not apply to final judgments that are injunctions. Unless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction...shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. Mass. R. Civ. P. 62(a). The prefatory clause of Rule 62(a) is the subject of Mass. R. Civ. P. 62(c), which states [w]hen an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal. Rule 65 governs and prescribes the proper form of an injunction: Unless the court, for good cause shown, otherwise orders, an injunction...shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys. Mass. R. Civ. P. 65(d).
Contrary to Coulters contention, a decision or judgment that does not specifically use words such as injunction or enjoin can nonetheless constitute an injunction. In Kindercare Learning Centers, Inc. v. Westford, 2003 WL 25542360 (2003), this court held that the language, the board...shall forthwith order the building inspector to issue the building permit... was an injunction. Coulter offers no cases holding that language akin to, a landscaping business may not be operated does not constitute an injunction. Moreover, Coulter erroneously distinguished Kindercare Learning Center, Inc. from the case at bar, stating that unlike Kinercare Learning Center, Inc., Plaintiff never sought injunctive relief in the original Complaint. This is a false statement (which Plaintiff conceded in a correspondence with this court), as Plaintiff did in fact request injunctive relief in its initial Complaint.
It therefore appears that the specific language in a decision, order, or judgment will determine whether an injunction has issued. Blacks defines injunction as a court order commanding or preventing an action. Blacks Law Dictionary (9th ed. 2009). Variance 3 was the necessary permit for Coulter to operate his landscaping business. Land Court Decision 2 annulled Variance 3, thereby preventing Coulter from conducting his business. Furthermore, the Judgment in Land Court Decision 2 ORDERED and ADJUDGED that...a landscaping business may not be operated on Locus... This language constitutes a court order preventing an action. While Coulter is correct that the word injunction does not appear in Land Court Decision 2, the intent of this courts order was to enjoin Coulter from operating a landscaping business on Locus.
Next, Coulters contention that Land Court Decision 2 did not describe in reasonable detail . . . the act or acts sought to be restrained, see Mass. R. Civ. P. 65(d), is wrong. Land Court Decision 2 states that a landscaping business may not be operated on Locus. This is sufficient. The fact that the Bylaws do not define the term landscaping business, as Coulter correctly points out, is irrelevant. So is the fact that many activities allowed in Land Court Decision 2 require the same equipment as a landscaping business. The court allowed activities, such as selling Christmas Trees and shrubs, that are in the nature of a nursery business. If Coulter is correct that definition of a business use is required before any injunction can issue, virtually no uses could ever be enjoined because the Bylaws do not define any specific uses. [Note 3] Just because Land Court Decision 2 did not set out exhaustively the activities prohibited does not foreclose the result that it operated as an injunction.
Land Court Decision 2 stated the following:
The following uses are not enumerated in the Bylaws as being allowed in the (zoning district) by special permit and, thus, they require a variance: operating a landscaping business on Locus; selling and storing mulch, loam, fertilizer, stone pavers, stone dust, and gravel as part of such a business; maintaining a forty-foot or sixty-foot dumpster on Locus as part of such business; maintaining and garaging at least seven commercial vehicles and trailers as part of such business; and erecting signage for a landscaping business.
20 LCR 251 , 259 (2012) (emphasis supplied). Land Court Decision 2 then goes on to explain why Variance 3 was annulled and, ultimately, annuls it. Coulter cannot reasonably state, given the above-quoted passage, that he did not know what activities were prohibited and he is incorrect to state that Land Court Decision 2 never attempted to specify any prohibited activities. Based on the foregoing, I find that Land Court Decision 2 constitutes an injunction.
Having determined that Land Court Decision 2 enjoined Coulter from operating a landscaping business on Locus, the next issue is whether Land Court Decision 2 was stayed by the Appeal. Because Land Court Decision 2 was an injunction, the Appeal did not stay its execution. Mass. R. Civ. P. 62(a) clearly states that [u]nless otherwise ordered by the court, an interlocutory or final judgment in an action for an injunction . . . shall not be stayed during the period after its entry and until an appeal is taken or during the pendency of an appeal. This court has not ordered to the contrary. Based on the foregoing, I find that Land Court Decision 2 was not stayed by the Appeal.
The next issue to determine is whether or not Coulter was in contempt of the injunction and, if so, the extent of his contempt. Plaintiff argues that the evidence presented at the Evidentiary Hearing establishes Coulters contempt from May 3, 2012, the date Land Court Decision 2 was issued, through December 18, 2012, the date of the Evidentiary Hearing. In the Motion to Supplement, Plaintiff argues that Coulters contempt has continued to the present day. Plaintiff thoroughly itemized instances of alleged contemptuous behavior in its post-trial brief for the period running May 3 through December 18. Plaintiff also submitted evidence in the Motion to Supplement of alleged contemptuous behavior, including photographs and the Affidavit of Frederick A. Lydon. Defendants argue that Coulter was fully in compliance with Land Court Decision 2 as of October 10, 2012.
Civil contempt is remedial in nature. United Factory Outlet, Inc. v. Jays Stores, Inc., 361 Mass. 35 , 37 (1972). To find a violation of an injunction sufficient to justify an order of contempt, there must be a clear and unequivocal command and an equally clear and undoubted obedience. Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501 , 565 (1997) (internal citations omitted); Nickerson v. Dowd, 342 Mass. 462 , 464 (1961). A court may make a finding of contempt and award damages for such contempt without regard to whether such contempt was willful. See Demoulas, supra, at 571.
An act does not cease to be a violation of a decree merely because it may have been done innocently. Belief, motive, or intent does not excuse the person alleged to be in contempt although the circumstance that the person was acting in good faith may be taken into consideration in mitigation of the offense. United Factory Outlet, Inc. v. Jays Stores, Inc., 361 Mass. 35 , 37 (1972).
In Land Court Decision 2, this court clearly and unequivocally commanded that a landscaping business not be operated on Locus. This court also clearly and unequivocally itemized actions prohibited in carrying out a landscaping business, including but not limited to, selling and storing fertilizer, maintaining and garaging commercial vehicles, and erecting signage for a landscaping business. See 20 LCR 251 , 259 (2012). The evidence presented establishes that this command was undoubtedly disobeyed. Photographs presented by Plaintiff at the Evidentiary Hearing depict large commercial vehicles on Locus during the daytime and at night, many bearing the name Coulter Landscaping. Large piles of fertilizer are depicted as well. The photographs in evidence also depicts large slabs of stone stored on Locus. Furthermore, the Incorporation, which was filed with the Secretary of State just two months after Land Court Decision 2 was issued, states that the purpose of the business is to engage in . . . operating a general landscaping and lawn maintenance business and lists Locus as the principal corporate office. Thus, Coulter organized his business for purposes expressly prohibited by Land Court Decision 2. Moreover, Lydons credible testimony, together with reasonable inferences drawn from the Exhibits and such testimony, convince this court that the landscaping equipment was not merely stored at Locus. Lydon credibly testified that even after October 10, 2012, he witnessed landscaping vehicles and equipment being brought to and from Locus, as well as landscaping byproducts, e.g. grass clippings, leaves, branches, etc. Moreover, Coulter admitted that he continuously performed maintenance on his landscaping equipment at Locus. Lydon credibly testified that such maintenance occurred in November 2012 and December 2012. These actions are clearly regular and necessary activities incidental to operating a landscaping business.
The next issue to determine the timing and extent of his contempt. It is undisputed that Coulter continued operating a landscaping business from the time of Land Court Decision 2 until October 10, 2012, the date which he has represented he ceased operation of the landscaping business. Coulter argues, however, that he was reasonable in his belief that the Appeal stayed the operation of the injunction. Coulters good faith and intent does not excuse his contempt. See United Factory Outlet, Inc., supra, at 37. As such, I find that Coulter was in contempt of Land Court Decision 2 for the period of May 3, 2012 through October 10, 2012. Coulter denies being in contempt from October 10, 2012, to the present. As discussed, supra, Plaintiff presented convincing evidence at the Evidentiary Hearing to the contrary. Indeed, Lydon testified that landscaping equipment was still being stored on Locus at the time of the site view on December 18, 2012, in the same manner as before October 10, 2012. Based on the evidence presented at the Evidentiary Hearing, it is clear to this court that Coulter operated a landscaping business on Locus up through December 18, 2012. I find that Coulter was in contempt of Land Court Decision 2 for the period of October 10, 2012, through December 18, 2012. See infra, regarding the Motion to Supplement for a discussion of Coulters alleged ongoing contempt after the Evidentiary Hearing.
III. Contempt Damages
Plaintiff claims it has incurred expenses in attempting to enforce Land Court Decision 2. Plaintiff argues that it is entitled to recover its litigation costs from Coulter, including attorney fees, as a result of Coulters contempt. Aside from its argument that he was not in contempt, discussed, supra, Coulter also claims that Plaintiff did not present evidence of market rate and reasonableness of Dunns fees. As such, according to Coulter, Plaintiff is thus precluded from recovery for all fees and costs.
Mass. R. Civ. P. 54(d) states that costs shall be allowed as of course to the prevailing party unless the court otherwise directs. Whether or not a party is entitled to litigation costs under this rule is a matter within the discretion of the judge. Labor Relations Commn v. Boston Teachers Union, Local 66, 374 Mass. 79 , 96 (1977). With respect to attorney fees, [a]s a matter of law, the awarding of attorneys fees and costs is an appropriate element of a successful contempt proceeding. Demoulas, supra, at 571. Attorneys fees and costs in a contempt proceeding are the courts means of compensating the plaintiff for legal expenses and costs incurred as a consequence of the defendants violation of the court order . . . regardless of whether the court has considered the violation of the underlying order to be wilful. Id.
The amount of a reasonable attorneys fee, awarded on the basis of statutory authority...is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorneys services...The basic measure of reasonable attorneys fees is a fair market rate for the time reasonably spent preparing and litigating a case...The first component of the basic measure amount is the amount of time reasonably expended on the case. The judge should begin his inquiry with the amount of time documented by the plaintiff's attorney. Then the judge decides whether this amount of time was reasonably expended...The second component of the basic measure amount is the amount of a reasonable hourly rate. This amount should be the average rate in the community for similar work by attorneys with the same years experience....The plaintiffs were required to convince the single justice that their request was reasonable...The [judge should] not to be a mere calculator of numbers but properly exercised independent judgment concerning the request's reasonableness. Stowe v. Bologna, 417 Mass. 199 , 204 (1994).
Counsel for Plaintiff charged an hourly rate of $175 through his firm, the Dunn Law Group, and an hourly rate of $250 through his subsequent firm, Berluti McLaughli & Kutchin. Plaintiff introduced evidence of reasonableness of such rates through the direct testimony of Lydon. Defendants argue that Lydon is not competent to testify to market rate for reasonable attorneys fees; however, Defendants do not per se challenge the reasonableness of Dunns hourly rate. Moreover, as the Evidentiary Hearing was jury waived, this court may consider Lydons testimony to the extent it deems such testimony to be credible and relevant. This court finds that both hourly rates are reasonable as a matter of law. Counsel for Plaintiff has appeared at numerous hearings before this court and has been at all times prepared and competent. With no direct challenge to Dunns hourly rates, together with Lydons testimony as to reasonableness, I find that $175 per hour and $250 per hour are reasonable rate for Dunn in this matter. The next issue is the extent of recoverable costs and fees associated with this contempt action.
Plaintiff initiated this contempt action to enjoin Coulters violation of Land Court Decision 2. Specifically, Plaintiff sought to enforce this courts injunction to prevent Coulter from operating his landscaping business at Locus. In this regard, counsel for Plaintiff took numerous measures to obtain enforcement of Land Court Decision 2, which efforts were documented and submitted as evidence at the Evidentiary Hearing. This court can classify Plaintiffs actions relative to his attempts to enjoin Coulter from operating his business into four categories: (1) litigating the Appeal, (2) pursuing administrative remedies through the Town, (3) efforts to prevent and then to appeal the Zoning Amendment, and (4) prosecuting a claim for civil contempt with this court.
This court shall not award any costs to Plaintiff relative to measures (1), (2), and (3). Plaintiff states that it took actions relative to the Appeal and relative to the protest of the Zoning Amendment to prevent Coulter from operating his landscaping business at Locus. However, even if Coulter were not in contempt of Land Court Decision 2, Coulter would have had the right to appeal Land Court Decision 2. As such, Plaintiffs efforts to litigate the appeal are irrelevant to Coulters contempt and any fees in this regard are not reasonable as it relates to this contempt action. Next, Plaintiffs efforts to pursue an administrative remedy to prevent Coulter from operating his landscaping business on Locus are also irrelevant to this Contempt proceeding. The Judgment clearly stated that a landscaping business may not be operated on Locus. Mass. R. Civ. P., Rule 63.5(a) states that Enforcement of compliance with [a judgment] shall be sought by means of a separate civil proceeding denominated as a civil contempt proceeding... Rule 65.3(b) states, A civil contempt proceeding shall be commenced by the filing of a complaint for contempt with the clerk of the court whose injunction, stipulation, order or judgment is claimed to have been violated. Instead of coming to this court to seek immediate enforcement of the Judgment (in accordance with the Rules of Civil Procedure), Plaintiff sought an administrative remedy through the Town. Plaintiffs failure to bring a complaint for contempt before pursuing administrative remedies is by no fault of Coulter. As such, these costs are not recoverable by Plaintiff. Finally, the Town was free to amend the Bylaw and to pass the Zoning Amendment, irrespective of Land Court Decision 2. Legal actions relative to the Zoning Amendment are completely independent from Coulters contempt and resulted in litigation separate and distinct from this contempt action. Based on the foregoing, I find that Plaintiff cannot recover any costs for its efforts in litigating the Appeal, pursuing an administrative remedy through the Town, and seeking to prevent and then later appeal the Zoning Amendment.
Plaintiff is entitled, however, to recover its costs relative to its Complaint for Civil Contempt and the ensuing litigation. Plaintiff brought this action in an effort to finally enjoin Coulter from operating his landscaping business on Locus, in accordance with Land Court Decision 2. This litigation is a direct result of Coulters contempt of Land Court Decision 2 and Plaintiffs efforts to seek compliance with Land Court Decision 2. As such, I find that Plaintiff is entitled to costs incurred in pursuing and prosecuting the Complaint for Contempt.
As stated, supra, Plaintiff submitted several bills for services by its counsel. Each bill describes the particular services rendered, time spent on each task, and a billing rate. Certain task descriptions, however, include descriptions for services rendered both outside and within the scope of services that this court has deemed recoverable. This court will not speculate as to how much time was spent, for example, on August 10, 2012, (1) conducting research on the Zoning Amendment (not recoverable) vs (2) Emailing client relative to pursuit of contempt action (recoverable). Both activities were included in the same entry in Dunns invoices to Lydon. It would be nearly impossible for Dunn himself to separate out certain tasks he has completed nearly one year later. In its broad discretion in awarding damages for contempt, this court shall exercise its best judgment in determining the fees that are actually recoverable by Plaintiffs. See Stowe, supra; United Factory Outlet, Inc., supra (court may consider good faith in mitigating effect of contempt). This court has compiled and attached to this Decision a chart of those expenses that it is has deemed recoverable by Plaintiff in this contempt action.
IV. Motion to Supplement the Evidence:
1. Coulters Ongoing Contempt:
Plaintiff filed the Motion to Supplement on March 1, 2013, seeking to introduce further evidence into the Evidentiary Hearing record relative to Coulters ongoing contempt after the Evidentiary Hearing as well as additional legal costs and fees incurred by Plaintiff. With respect to the issuing of Coulters ongoing Contempt, this court DENIES IN PART the Motion to Supplement. The evidence relative to Coulters contempt was closed upon the conclusion of the Evidentiary Hearing. Plaintiff made no request to be able to supplement the evidence relative to Coulters ongoing contempt post-Evidentiary Hearing. Moreover, the Affidavit of Lydon together with the Exhibits is an improper method of providing a claim for contempt. Therefore, as stated, supra, I find Coulter to be in contempt of Land Court Decision 2 and the Judgment from May 3, 2012, through December 18, 2012. See infra for total costs that are recoverable.
2. Costs and Fees:
Counsel for Plaintiff submitted additional costs and fees associated with the Contempt action and costs and fees associated with appealing the Zoning Amendment. As discussed, supra, Plaintiff is not entitled to recover any costs relative to its appeal of the Zoning Amendment. Defendants challenge the Motion to Supplement on the grounds that Plaintiff never reserved its right to supplement the evidence at the Evidentiary Hearing. Defendants claim that upon conclusion of the hearing, the record was closed and no more evidence could be presented to this court.
In a colloquy with counsel for Plaintiff at the Evidentiary Hearing, this court indicated that it would be unacceptable for Plaintiff to submit evidence by Affidavit testimony for attorneys fees incurred relative to this contempt action. Dunn did, however, ask that he be allowed to submit an affidavit which would include costs associated with todays proceedings. He also proceeded to introduce fees and expenses incurred by the Trust through the testimony of Lydon, with the exception of costs incurred today. Dunn, however, never expressly reserved his right to submit fees and costs incurred by the Trust outside of the actual Evidentiary Hearing. Moreover, Dunn made no representation and presented no evidence of any estimate of his costs and fees that he would incur subsequent to the Evidentiary Hearing. Cf. Alfonso v. Aufiero, 66 F. Supp. 2d 183, 195 (D. Mass. 1999) (court awarded post-trial costs to attorney who presented reasonable estimate of post-trial costs at the trial).
The fees incurred for post-trial briefing of the Evidentiary Hearing and all related evidence are clearly associated with the contempt proceeding. However, Dunn did not ever make any estimate with this court with respect to prospective hours he might incur during the post-trial briefing. This court has broad discretion in formulating a remedy for civil contempt. See Alfonso, supra, at 195; Labor Relations Commn, supra, at 96. As such, the Motion to Supplement is ALLOWED IN PART and Plaintiff is entitled to all fees it incurred on the date of the Evidentiary Hearing and Plaintiff is entitled to one half of all fees it incurred relative to post-trial briefing. This court shall not award any fees relative to preparation of the Motion to Supplement.
Including the Motion to Supplement, the total that Dunn sought for professional legal fees amounted to $24,661.25. This court shall award Plaintiff his legal fees in the amount of $9,575.00, as outlined in Exhibit A attached to this decision. Based on the foregoing, within thirty days from the date of this Order, Coulter shall pay Plaintiff the sum of $9,575.00.
Judgment to enter accordingly.
[Note 1] The ZBA filed its Statement of Additional Material Facts on June 14, 2010.
[Note 2] The parties have represented in this matter and in a related matter in which Plaintiff is challenging the validity of the Zoning Amendment (12 MISC 474938), that the Zoning Amendment would allow Coulter to operate a landscaping business by Special Permit. As of the date of this Decision, Coulter has obtained all permits necessary under the Zoning Amendment and the Bylaws to operate a landscaping business from Locus.
[Note 3] The only use defined by the Bylaws is a sexually oriented business.